The term given to the alteration of property interests after
separation is "property settlement".
When a marriage or de facto relationship ends, the issues left
to be resolved can often be complex. It is an emotional and often
confusing time and it may not be easy for the individuals involved
to see how those issues should be dealt with. They will also not
know what their true entitlements for property settlement are and
may be misguided by many common urban myths about separation and
There are many misconceptions regarding property distribution
- You don't need to do a property settlement unless you own a
- I owned it before the relationship therefore it's mine free
from any claim from my ex partner.
- My name is not on the Title of the house or mortgage and
therefore I have no rights to the house.
- I worked hard in this business and it's mine free from any
claim from my ex partner.
- I'll lose my right to bring a claim for a property settlement
if I leave the home.
- I get to keep my inheritances and gifts I received free from
any claim from my ex partner.
- Being a stay at home mum isn't valued and is not factored into
a claim for property settlement.
Any agreement reached between the parties in respect of their
property settlement should be formalised by way of Consent Orders
through the Family Court of Australia, or in some situations
through a Binding Financial Agreement.
When former parties to a marriage or de facto relationship reach
agreement about their property settlement, an application can be
made to the Family Court to formalise that agreement by making a
Court Order that is referred to as a Consent Order.
You do not need to personally appear in court to obtain a
Consent Order, and neither does your lawyer. The application that
is filed in the Court is reviewed by the Court to determine whether
it is just and equitable. The Court can only make an Order for
property settlement that is just and equitable according to the
provisions of theFamily Law Actthat relate to property settlement.
We will advise you about this issue during the process and confirm
whether our view is that the Orders sought are just and equitable.
Unlike a Binding Financial Agreement, Parenting Orders can also be
made by the Court by Consent. This means that an Order can be made
by the Court which covers both property settlement and Parenting
We can prepare the necessary documents including both the
Application to the Court for Consent Orders and drafting the
specific Court Orders sought.
A filing fee is payable upon the filing of an Application for
Binding Financial Agreements
If the parties want the agreement to be kept out of the public
record, they can choose to formalise their agreement by way of a
Binding Financial Agreement.
There are strict procedural and advice requirements that must be
adhered to when formalising a property settlement by way of a
Binding Financial Agreement. Each party needs to get independent
legal advice about the effect of the agreement on their rights and
the advantages and disadvantages of entering into the
The process involves one party's lawyer drawing up a draft
Binding Financial Agreement for the other party's lawyer to review.
When both parties and their respective lawyers are happy with the
terms and drafting of the Binding Financial Agreement, each party
will receive independent legal advice about the agreement from
their lawyer. The lawyers then sign a statement that the advice has
been provided and the parties then sign the agreement.
The main difference between this and a Consent Order is that a
Binding Financial Agreement is not reviewed by the Court and each
party needs their own independent lawyer. There are more risks
associated with formalising an agreement by way of a Binding
Financial Agreement. If the requirements to make it binding are not
complied with, it will not prevent a party from subsequently making
an application to the Court for a property settlement. There are
also more grounds to set aside a Binding Financial Agreement than
there are for a Court Order. It is therefore our preference to
formalise matters by way of Consent Orders where possible.
At Andersons we can assist by conducting the whole process on
Your first step to security is to make contact with one of our experienced Family